Staet v. Norris

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Carolyn D. Norris, Appellant.

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Appeal From Anderson County
J. C. Buddy Nicholson, Jr., Circuit Court Judge

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 Opinion No. 2003-UP-81
Submitted November 20, 2002 - Filed January 29, 2003  

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AFFIRMED IN PART; REVERSED IN PART

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Assistant Appellate Defender Tara S. Taggart, of Columbia; for Appellant.

Deputy Director for Legal Services Teresa A. Knox; Legal Counsel Tommy Evans, Jr.; Legal Counsel J. Benjamin Aplin, all of Columbia; for Respondent.

PER CURIAM:  Carolyn D. Norris appeals the revocation of her probation, arguing the circuit court erred in revoking her probation on three charges for which she had never received probationary sentences. We affirm in part and reverse in part. [1]

FACTS/PROCEDURAL HISTORY

Norris pled guilty to three counts of forgery and one count of driving under suspension (DUS).  The court sentenced her as follows:

Forgery indictment 99-GS-04-2469	10 years suspended upon service of months with 3 years probation
Forgery indictment 99-GS-04-2467	18 months concurrent
Forgery indictment 99-GS-04-2468	18 months concurrent
DUS indictment 00-GS-04-333	3 months concurrent

Norris served the active portion of her suspended sentence on 99-GS-04-2469 and thus also completed her sentences on the remaining charges.  After her release from prison, Norris was arrested, convicted, and sentenced to 30 days for receiving stolen goods.  She was then served with an arrest warrant alleging she violated her probation by being convicted, failing to notify her probation agent of her arrest, being in arrears on her restitution and fees, and failing to follow her probation agent’s advice. 

At Norris’ revocation hearing, the court found she willfully violated her probation.  The court reinstated 6 years of her original 10 year sentence on indictment 99-GS-04-2469 and continued her on probation with a condition that she attend the restitution center and that her probation be terminated upon full payment of her restitution.  The court issued a written form order to this effect, but also issued three additional orders purporting to revoke Norris’ suspended sentences on her other original charges. 

LAW/ANALYSIS

Norris first argues the circuit court lacked subject matter jurisdiction to issue probation revocation orders on three charges for which she never received probationary sentences.  We agree.

South Carolina Code Annotated Section 24-21-450 (Supp. 2002) permits issuance of an arrest warrant against a defendant for violating probation or suspended sentence conditions “[a]t any time during the period of probation or suspension of sentence.”  Our courts have held the failure to comply with the warrant procedures established by section 24-21-450 deprives the court of subject matter jurisdiction.  See State v. Richburg, 304 S.C. 162, 164-65, 403 S.E.2d 315, 317 (1991).  However, the challenged orders in this case purport to revoke suspended sentences that were never imposed. Norris did not receive probation or suspended sentences on any of these charges. Furthermore, as the State concedes, at the time of the hearing she had completed service of her sentence on each charge in question.  Thus the challenged orders are nullities ab initio. 

Norris next contends she is entitled to reconsideration of her probation revocation on the forgery count for which she received a suspended and probationary sentence because the court was confused.  This argument was not raised to the circuit court at the revocation hearing or in a motion for reconsideration and is therefore not preserved.  State v. Perez, 334 S.C. 563, 565-66, 514 S.E.2d 754, 755 (1999).

AFFIRMED IN PART; REVERSED IN PART.

CONNOR, STILWELL, and HOWARD, JJ., concur.

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[1]                 We decide this case without oral argument pursuant to Rule 215, SCACR.